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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2018-0608

THE STATE OF NEW HAMPSHIRE

v.

STEPHEN GIRARD

Argued: February 12, 2020

Opinion Issued: October 16, 2020

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant 

attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the 

brief and orally, for the defendant.

HANTZ MARCONI, J. The defendant, Stephen Girard, was charged with 

two counts of misuse of a computer or network, see RSA 638:17, IV (2016), two 

counts of indecent exposure, see RSA 645:1, II(a) (2016), and two counts of 

witness tampering, see RSA 641:5 (2016). Following a bench trial in the 

Superior Court (Delker, J.), he was acquitted of the witness tampering charges 

and convicted on the remaining indecent exposure and computer-related 

charges. On appeal, he argues that the trial court unsustainably exercised its 

discretion when it denied his motion to sever the computer-related indictments 

from the indecent exposure indictments. He also requests that we review 

family counseling records provided to the trial court for its in camera review to 

determine whether the court erred in failing to disclose additional material. We 
2

conclude that the trial court’s ruling on the defendant’s motion to sever is 

sustainable. We affirm the defendant’s convictions on the charges of misuse of 

a computer.

Having considered the supplemental memoranda that we requested from 

the parties, we also clarify the standard to be applied by trial courts when 

conducting in camera review of privileged materials and remand this case to 

the trial court to determine whether this clarification affects its original 

disclosure ruling, and for such other relief as it may deem appropriate.

I

We briefly set forth the facts necessary to decide the issues before us. In 

September 2016, the minor victim disclosed to her mother that the defendant 

had sent a picture of his erect penis to her. When the victim was subsequently

interviewed at the Child Advocacy Center, she reported that the defendant had 

also masturbated in front of her. The defendant was indicted on two counts of

indecent exposure as a result of these acts. The indictments described the acts 

as occurring between January 1, 2016 and September 11, 2016. 

After the defendant learned that the victim’s mother had reported to the 

police his acts of indecent exposure, he sent the following e-mail to her cousin: 

“You better tell [the victim’s mother] to knock it off. [The victim]’s stuff is a lie. 

If [the mother] doesn’t knock it off, I will sue for slander. Tell her to keep her 

mouth shut. I didn’t do anything.” Shortly thereafter, the defendant accessed 

e-mail and Facebook accounts of the victim’s mother, without her permission, 

and changed the passwords on the accounts. These acts resulted in the 

computer-related charges. The defendant’s e-mail communication to the 

mother’s cousin and his unauthorized access to the mother’s computer 

accounts resulted in the witness tampering charges.

In a pretrial ruling addressing a pending motion in limine filed by the 

State,1 the trial court observed that the State had not formally joined the 

charges for trial and that the defendant had not objected to joinder. The court 

concluded that the pending charges were logically and factually connected and 

joined them. See N.H. R. Crim. P. 20. 

 

1 The trial court described the State’s motion as seeking “to admit evidence of certain conduct and 

statements of the defendant pursuant to New Hampshire Rule of Evidence 404(b).” The court 

described four topics addressed in the State’s motion: (1) the defendant’s prior conduct with the 

minor victim, including discussions about sex and showing her pornographic videos; (2) the 

victim’s disclosure to her mother; (3) the defendant’s text message to his son apologizing for what 

had happened; and (4) the defendant’s violation of a court order by making the Facebook threats. 

The trial court found that the Facebook threat was “part of the conduct for which the defendant 

[was] charged” and ruled it admissible but denied the remainder of the State’s request. 
3

In response, the defendant filed a motion to sever, arguing that the three 

sets of charges were unrelated to one another, and that trying the indecent 

exposure charges with the computer-related offenses and witness tampering 

charges would “unfairly prejudice the jury” against him. He requested three 

separate trials. 

In a review of its earlier ruling, the trial court found that the witness 

tampering and computer-related charges “most certainly fit the criteria 

outlined in” our case law regarding whether charges may be joined because 

they are logically and factually connected. The court found the “more difficult 

question” to be whether the indecent exposure charges were logically and 

factually connected to the witness tampering and computer-related charges. 

After applying the aforementioned criteria, the court ruled that “severing the 

charges would cause evidentiary chaos because . . . a significant overlap of the 

facts would be mutually admissible at the respective trials.” The court 

concluded that “the purpose of joinder outweighs the marginal prejudice to the 

defendant in this instance,” and denied the defendant’s motion.

Prior to trial, the trial court became aware that the defendant had been 

indicted on sexual assault charges (Case 2) that involved a different victim who 

was related to the victim in this case. The court conducted an in camera

review of family counseling records in Case 2 and found: 

Most of the sessions subject to disclosure relate to allegations that 

the defendant engaged in inappropriate contact with [the minor 

victim in this case] on social media. This conduct in turn appears 

to be the catalyst for disclosure following the September 2016 

counseling session. It would raise form over substance[ ] to limit 

the disclosure of these records to counsel in [Case 2]. 

The court therefore sua sponte ordered disclosure of certain records to 

the parties in this case. After his motion to sever was denied, the defendant 

waived his right to a jury trial and proceeded to a bench trial. Following his 

convictions on the indecent exposure and computer-related charges, the 

defendant appealed.

II

A

The defendant first argues that the trial court erred when it denied his 

motion to sever the indecent exposure charges from the witness tampering and 

computer-related charges. The trial court’s decision to join or sever charges is 

discretionary; we will affirm its ruling unless the decision constitutes an 

unsustainable exercise of discretion. State v. Brown, 159 N.H. 544, 555
4

(2009). To succeed on appeal, the defendant must demonstrate that the ruling 

was clearly untenable or unreasonable to the prejudice of his case. Id.

New Hampshire Rule of Criminal Procedure 20 provides in relevant part:

(a) Joinder of Offenses

 (1) Related Offenses. Two or more offenses are related if they: 

 (A) Are alleged to have occurred during a single criminal 

episode; or 

 (B) Constitute parts of a common scheme or plan; or

 (C) Are alleged to have occurred during separate criminal 

episodes, but nonetheless, are logically and factually connected in 

a manner that does not solely demonstrate that the accused has a

propensity to engage in criminal conduct. 

 (2) Joinder of Related Offenses for Trial. If a defendant is charged 

with two or more related offenses, either party may move for 

joinder of such charges. The trial judge shall join the charges for 

trial unless the trial judge determines that joinder is not in the 

best interests of justice.

N.H. R. Crim. P. 20. Accordingly, we must determine whether the record 

supports a finding that the charges were logically and factually connected. 

Whether offenses that occurred during separate criminal episodes are “logically 

and factually connected in a manner that does not solely demonstrate that the 

accused has a propensity to engage in criminal conduct,” id., is “largely 

determined by the close relationship among the offenses with respect to both 

the underlying charged conduct and the evidence to be used to prove the 

charges,” Brown, 159 N.H. at 551. 

In Brown, we set forth five factors that trial courts should consider when 

determining whether charges resulting from separate criminal episodes are 

related: “(1) the temporal and spatial relationship among the underlying 

charged acts; (2) the commonality of the victim(s) and/or participant(s) for the 

charged offenses; (3) the similarity in the defendant’s mode of operation; (4) the 

duplication of law regarding the crimes charged; and (5) the duplication of 

witnesses, testimony and other evidence related to the offenses.” Id. at 551-52. 

We cautioned that no single factor is dispositive on the question of relatedness. 

Id. at 552. Rather, they serve “as guidelines that must be sensibly applied in 

accord with the purposes of joinder.” Id.

We also observed that the joint trial of offenses may benefit both the 

State and the defendant. Id. Joint trials avoid the duplication of evidence and 

may reduce inconvenience to victims and witnesses. Id. The potential benefits
5

to the defendant may include the faster disposition of pending charges, the 

possibility of concurrent sentences in the event of conviction, and protection

against enhanced sentencing that might occur from separate trials. Id.

The defendant observes that the State did not allege and the trial court 

did not find that the three pairs of charges occurred during a single criminal 

episode or that they constituted part of a common scheme or plan. In a stepby-step review of the factors set forth in Brown, the defendant attempts to 

rebut the trial court’s finding that the charges were related. We are not 

persuaded. 

The defendant first argues that the indecent exposure charges were not 

temporally or spatially related to the witness-tampering and computer charges. 

He observes that the indecent exposure indictments alleged acts that occurred 

between January 1, 2016 and September 11, 2016; in contrast, the witness 

tampering and computer-related indictments alleged acts that occurred on or 

about September 29, 2016. The trial court recognized that the acts that 

resulted in the indecent exposure charges occurred earlier than those that gave 

rise to the witness tampering and computer-related charges. The court

concluded, however, that the charges were related because the “computer 

related and witness tampering offenses would not have occurred absent the 

accusations of indecent exposure.” The defendant challenges this analysis, 

arguing: “The question is not whether a witness’s allegations about one offense 

are somehow connected to another offense, but whether the offenses 

themselves are connected.” In this case, this is a distinction without a 

difference. As we have observed, “offenses stemming from separate criminal 

episodes may be ‘logically and factually connected’ in a variety of ways that do 

not solely demonstrate a defendant’s propensity to commit crime.” Id. at 553. 

Here, the actions taken by the defendant after he learned of the victim’s 

allegations resulted in the witness tampering and computer-related charges 

and were therefore properly deemed to be related. See, e.g., State v. Roberts, 

465 S.W.3d 899 (Mo. 2015) (concluding that assault and witness tampering 

charges were connected, in part, because acts leading to witness tampering 

charges would not have occurred in absence of assault). 

The second Brown factor to be considered when determining whether 

charges arising from separate criminal episodes are related addresses the 

commonality of the victims and/or participants. Brown, 159 N.H. at 552. The 

defendant argues that “the indecent exposure charges did not have the same 

alleged victim or participants as the witness-tampering and computer charges.”

Although he challenges each of the trial court’s findings underlying its ultimate 

conclusion that “all of the charges concern the same or similar participants,” 

we conclude that the trial court’s conclusion is supported by the record. At 

least one of the victims was affected by all of the defendant’s acts: the minor 

victim’s mother reported to the police the victim’s disclosure and, as a result,

became the target of the threats underlying the witness tampering charges and 
6

the victim of the charges of the unauthorized use of a computer. In addition, 

trial of the charged offenses involved common witnesses, including the same 

investigating police officer. See, e.g., id. at 554 (joinder proper where charged 

offenses involved common witnesses and primarily the same police officers). 

The third Brown factor addresses “the similarity in the defendant’s mode 

of operation.” Id. at 552. Although the trial court found that the defendant’s 

mode of operation was dissimilar among the charges, the State argues that the 

defendant’s “control over the family’s technology” supports a finding that the 

third Brown criterion was met. It may well be that proficiency with technology 

enabled the defendant to take actions that underlay each of the pairs of 

charges. Considered in isolation, we do not find this to be a compelling factor, 

but when combined with the other connections between the charges, it 

supports joinder.

It appears undisputed that there is little duplication of the law regarding 

the crimes charged. Therefore, the fourth Brown factor provides no support for 

joining the charged offenses. 

However, the potential for “duplication of witnesses, testimony and other 

evidence related to the offenses,” id., the fifth Brown factor, is significant in this 

case. As we have observed, evidence related to the witness tampering and 

computer-related charges overlapped. Additionally, testimony by the same 

police officer was relevant to both the indecent exposure charges and the 

witness tampering charges. 

Given the close relationship among the offenses with respect to both the 

underlying charged conduct and the evidence, including witness testimony, to 

be used to prove the charges, we conclude that the trial court did not 

unsustainably exercise its discretion when it denied the defendant’s motion to 

sever the charges. See id. at 551; cf. 1A Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 143 (4th ed. 2016) (joinder proper if it 

“allows the jury to see the complete set of facts about the alleged criminal 

enterprise”).

B

The defendant also asks that we review the records of the family 

counseling sessions provided to the trial court for in camera review to 

determine whether the court erred in failing to disclose additional material 

contained therein. We note at the outset that this is not a case in which the 

State is in possession of the records sought by the defendant. Cf. Petition of 

State of N.H. (State v. Theodospoulos), 153 N.H. 318, 320-21 (2006). Rather, 

acknowledging that neither party had access to the privileged records, the 

defendant argues that the trial court may have erred when, after weighing his 

right to obtain disclosure of material helpful to his defense against the 
7

statutory privilege that governs counseling records, the court determined that 

certain records did not meet the standard for disclosure. We review a trial 

court’s ruling on the management of discovery to determine whether its 

decision is sustainable. State v. Guay, 162 N.H. 375, 385 (2011). When a 

defendant argues that a trial court’s ruling is unsustainable, the defendant 

must demonstrate that the ruling was clearly unreasonable or untenable to the 

prejudice of his case. Id.

A criminal defendant’s interest in obtaining disclosure of material helpful 

to his defense is rooted in the constitutional right to due process. See State v. 

Laurie, 139 N.H. 325, 327 (1995). In contrast, the psychotherapist-patient 

privilege, which is intended “to encourage full disclosure by the patient” to 

receive complete treatment, Petition of State of N.H. (State v. MacDonald), 162 

N.H. 64, 67 (2011), has been established by statute. See RSA 330-A:32 (2017)

(amended 2019).

2 Accordingly, to determine whether the psychotherapistpatient privilege must cede to due process considerations such that privileged 

records must be disclosed to a criminal defendant, the trial court must balance 

the confidentiality of such records against the defendant’s right to obtain 

evidence helpful to his defense. State v. Gagne, 136 N.H. 101, 105 (1992). 

Upon a proper showing by the defendant, in camera review of such records 

enables the trial court to conduct that inquiry and decide whether due process 

requires disclosure of confidential records. See id.

A defendant’s request to obtain privileged records raises two distinct, but 

related, issues. Id. at 104. The first issue is the standard to be met to obtain 

in camera review of the privileged material. Id. The second issue is the 

standard to be met for the defendant to obtain access to the records. Id. In 

Gagne we held that, to obtain in camera review, “the defendant must establish 

a reasonable probability that the records contain information that is material 

and relevant to his defense.” Id. at 105. 

With regard to the second issue, we also held in Gagne that the trial 

court must disclose to the defense confidential material that contains evidence 

that is “‘essential and reasonably necessary’ to the defense.” Id. at 106. 

Almost twenty years later, Justice Lynn observed that “we have never 

elaborated upon or explained what this phrase means.” Guay, 162 N.H. at 386 

(Lynn, J., concurring specially). As the trial court in the case now before us

noted, although its research yielded 29 cases in which we used the phrase 

“essential and reasonably necessary,” it found no elucidation of that standard.

We observe that we have applied the “essential and reasonably 

necessary” standard in the context of the right to confrontation, provided by 

the Sixth Amendment to the United States Constitution, see State v. Farrow, 

 

2 The legislature has specifically provided that, in certain cases, disclosure of the relationships 

and communications governed by this statute may be required by court order. See RSA 330-A:32.
8

116 N.H. 731, 732-33 (1976), but we have more recently employed the same 

language when reviewing the nondisclosure of confidential records and the 

attendant standards in the context of due process requirements, see Gagne

136 N.H. at 105. Indeed, our due process analysis in Gagne suggests that we 

gave “essential and reasonably necessary” a different interpretation there than 

we did in Farrow. Compare Gagne, 136 N.H. at 104-05, with Farrow, 116 N.H. 

at 733. 

Today, we clarify the meaning of the “essential and reasonably 

necessary” standard employed in Gagne to determine whether confidential 

records must be disclosed. See Gagne, 136 N.H. at 104, 106. Doing so allows 

us to harmonize the standards to be applied at each step of the inquiry and 

clarifies the task that trial counsel have in asserting, and trial courts have in 

determining, whether review and disclosure of confidential records is required 

in criminal cases.3

The first step of the inquiry is unaltered: to obtain in camera review of 

confidential records, the defendant must demonstrate that there is “a 

reasonable probability that the records contain information that is material 

and relevant to his defense.” Id. at 105. To satisfy this standard, the 

defendant must present “some specific concern, based on more than bare 

conjecture, that, in reasonable probability, will be explained by the information 

sought.” State v. Sargent, 148 N.H. 571, 573 (2002) (quotation omitted). As we 

have explained, this “threshold showing is not unduly high.” Id. (quotation and 

ellipsis omitted).

Then, in reviewing the records, the trial court must determine if material 

and relevant “evidence is in fact contained in the records.” State v. Graham, 

142 N.H. 357, 363 (1997); see State v. Peseti, 65 P.3d 119, 129 (Haw. 2003) 

(requiring disclosure of privileged documents when they are, among other 

things, “relevant and material to the issue before the court” (quotation omitted). 

“Evidence is relevant if: (a) it has any tendency to make a fact more or less 

probable than it would be without the evidence; and (b) the fact is of 

consequence in determining the action.” N.H. R. Ev. 401. The United States 

Supreme Court has explained that evidence “is material only if there is a 

reasonable probability that” disclosure of the evidence will produce a different 

result in the proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985); 

see United States v. Agurs, 427 U.S. 97, 104 (1976) (“[I]mplicit in the 

requirement of materiality is a concern that the suppressed evidence might 

have affected the outcome of the trial.”); State v. Olah, 184 A.3d 360, 368-69 

(Me. 2018) (requiring disclosure of privileged records that are “favorable to the 

accused and material to guilt or punishment” (quotation omitted)). “A 

‘reasonable probability’ is a probability sufficient to undermine confidence in 

the outcome.” Bagley, 473 U.S. at 682. 

 

3 Whether or not privileged information is admissible at trial is an entirely different matter.
9

We note that, here, the trial court differentiated between general 

credibility evidence and other forms of impeachment evidence. We briefly 

address whether general credibility evidence should be a factor in this calculus. 

General credibility evidence has been described as “traditional proofs — offered 

through character or reputation witnesses and sometimes through proof of 

specific instances of misbehavior, especially prior convictions — to support an 

inference that the witness has a tendency to lie.” White v. Coplan, 399 F.3d 

18, 24 (1st Cir. 2005). As the First Circuit has observed, “modern evidence 

rules . . . have significantly restricted such evidence without totally precluding 

it in all cases.” Id.; see N.H. R. Ev. 608. Our holding today does not expand 

that restriction. Nor do we hold that cross-examination as to general credibility 

evidence is entitled to the same level of constitutional protection as crossexamination on evidence adduced to show bias, motive or prejudice. See State 

v. Miller, 155 N.H. 246, 256 (2007). However, given our clarification, records 

containing general credibility evidence may be material and relevant thereby 

requiring disclosure.

In this case, the trial court reviewed the privileged records and found 

that records of “only four sessions relate either directly or implicitly to the 

allegations of the defendant’s misconduct toward either of the [victims]. . . . A 

fifth session . . . may or may not relate to the accusations against the 

defendant.” The court explained: “Because these five sessions relate either 

directly or implicitly to the defendant’s misconduct toward the two alleged 

victims, the Court finds that these session[s] involve more than an attack on 

general credibility.” Therefore, the trial court disclosed the records of all five 

sessions “out of an abundance of caution.” It appears from its ruling that the 

court excluded information that related only to general credibility, and did not 

consider whether such information was material and relevant. On remand, the 

trial court should review the records with our clarification in mind. 

The defendant is appealing his convictions on two counts of indecent 

exposure and two counts of misuse of a computer or network. We note that 

the minor victim’s testimony in this case related to the charges of indecent 

exposure, not to the charges of misuse of a computer or network. After 

reviewing the privileged records as well as the record of the trial court 

proceedings, we conclude that, under the standard that we have clarified 

today, none of the undisclosed records contain information that is material and 

relevant to the defendant’s defense to the charges of misuse of a computer or 

network. 

As for the indecent exposure charges, with respect to which the minor 

victim’s credibility was relevant, we conclude that remand is necessary to 

permit the trial court to conduct, in the first instance, a further in camera

review of the privileged records under the standard that we have clarified 

today. If the court discovers records that are material and relevant to the 

defendant’s defense at trial, it should order a new trial on the indecent 
10

exposure charges unless the court finds that the error was harmless beyond a 

reasonable doubt. 

 Affirmed in part; and remanded.

HICKS, BASSETT, and DONOVAN, JJ., concurred.